By Peter Schaar, 15 January 2020
The current constitutional complaint against the Federal Intelligence Service Act before the Federal Constitutional Court is about more than the constitutionality of a federal law. The central question is rather whether German authorities are bound by the fundamental rights guaranteed by the German Basic Law even when they are active abroad. The focus here is on the fundamental rights to the secrecy of telecommunications (Article 10 GG) and to freedom of the press (Article 5 GG).
When Edward Snowden made the worldwide wiretapping practices of American secret services public in 2013, the outrage was great. It was heard even in the highest German government circles that the Americans had thereby violated the German and international law. Subsequently, Germany – together with Brazil – even pushed through a resolution of the UN General Assembly “to protect privacy in the digital world” (https://www.un.org/ga/search/view_doc.asp?symbol=A%2FC.3%2F68%2FL.45%2FRev.1&Lang=E). The core concern of this resolution, which was not binding on the UN member states, was to limit global surveillance.
However, the German Bundestag’s committee of inquiry into the NSA affair subsequently brought to light that the BND – like the foreign secret services of other Western countries – was also involved in an international surveillance network. The core idea of this network was (and still is) to share the information gathered abroad with the services that are prohibited from such activities in their home countries. Through this information ring exchange, the constitutional safeguards that guarantee national law – such as the Basic Law – to your citizens are undermined.
Moreover, as part of the so-called “strategic telecommunications surveillance”, the BND had even monitored those communication processes in which e-mails and telephone calls from foreign communication users were routed via German network nodes. Representatives of the Federal Government insisted on the position vis-à-vis the parlamentary NSA investigative committee that the protection of fundamental rights guaranteed by the German Basic Law should end at the German borders. The dubious practice of the BND was justified with all kinds of imaginative constructions, such as the “satellite theory” (which equated the surveillance of Internet nodes with the surveillance of communications satellites, which was also practiced) or the “function agent theory” (according to which employees of foreign authorities or companies were not protected by the secrecy of telecommunications).
Nevertheless, the German grand coalition decided to amend the BND law in 2016, which, however, only formally took account of the criticism. Since then, the law has also covered foreign intelligence, but at the same time it not only legalised the previous interception practices, but it even extended the surveillance powers for “strategic control”. Particularly in view of the continued practice of the information ring exchange between secret services, the BND thus continues to participate – now based on the BND Act – in the global violation of fundamental and human rights, which in view of the advancing technological development affects more and more areas of life. Particularly at risk are those who, due to their vulnerability, actually require special protection: Dissidents, whistleblowers and regime critics in authoritarian states, who must fear that the information gathered during foreign intelligence operations will fall into the hands of their persecutors. Equally affected are representatives of the media, whose sources are in danger of being uncovered.
It is to be hoped that the Federal Constitutional Court will set clear limits here!
Translated with www.DeepL.com/Translator (free version)